Request for reimbursement of protest costs is granted. The agency contended the protester was not entitled to costs because its protest arguments had not been clearly meritorious. GAO chucked this argument, finding that the protest had convincingly shown that the agency muffed the price evaluation and best value tradeoff. Had the agency reasonably inquired into the protester’s allegations before filing the agency report, it would have discovered these errors and saved everyone the hassle.
The Forest Service awarded a contract for vegetation removal and treatment to reduce the risk of wildfires in the Rocky Mountains. An unsuccessful offeror, Markit! Forestry Management, protested, challenging the agency’s price evaluation and best value analysis. Following the filing of the agency report and Markit!’s Comments, the Forest Service notified GAO that it was taking corrective action to reevaluate proposals. After GAO dismissed the protest as academic, Markit! requested that GAO recommend an award of protest costs.
GAO will recommend reimbursement of protest costs when the agency unduly delays in taking corrective action in the face of a clearly meritorious protest. Generally, an agency unduly delays by waiting until after the filing of the agency report to take corrective. Here, the Forest Service did not take corrective action until after the agency report. The corrective action was undisputably delayed.
But the Forest Service argued that Markit! was not entitled to costs because its protest grounds were not clearly meritorious. GAO disagreed.
In its protest, Markit! had challenged the price evaluation, arguing that the Forest Service’s evaluation was inconsistent with the terns if the solicitation. The evaluators had assigned adjectival ratings—e.g., slightly low, low, slightly high, high, extremely high—to every proposed CLIN that was at least 15 percent below or above the government estimate. The evaluators then averaged these ratings to come up with a consensus price rating of acceptable or unacceptable. GAO found that the record did not reflect how this average was determined, and that the solicitation did not contemplate the averaging of adjectival ratings for unit prices. Had the Forest Service conducted a reasonable evaluation in Markit!’s price allegations, it would have discovered the error.
Markit! had also alleged in its protest that the best value tradeoff was flawed because the Forest Service had failed to recognize that many offerors’ prices substantially exceeded the agency’s acceptability baseline. GAO reasoned that it had already found the award decision was based on a flawed price evaluation. Thus Markit!’s challenge to the best value decision was also meritorious.
The Forest Service attempted to argue that Markit! had abandoned these arguments by not sufficiently addressing them in the Comments. A protest ground is abandoned when agency provides a detailed response to a protester’s assertions and the protester fails to rebut the arguments in its Comments. But in this case, Markit! rebutted the agency’s defenses by providing examples from the agency record that supported its original protest allegations.
Markit! Is represented by Jacob W. Scott, Alan I. Saltman, and Erik M. Coon of Smith, Currie, & Hancock, LLP. The agency is represented by Antonio Robinson of the Department of Agriculture. GAO attorneys Andrew J. Smith and Stephanie B. Magnell participated in the preparation of the decision.
